The Elysian Foundations of Election Law
Volume 82, No. 1, Spring 2009
By Luke P. McLoughlin [PDF]

Three decades ago, John Hart Ely described and defended a theory of judicial review founded upon clearing the channels of political change and facilitating the representation of minorities. Ely’s argument has had a mixed legacy in constitutional law, its principles inexorably present in constitutional theory and its applications seemingly unrealized in most contexts. Yet for all the criticism the theory received, features of Ely’s theory are ingrained today as organizing principles in the election law jurisprudence, the realm where Ely’s channel-clearing argument has the most traction. Ely’s modern-day heirs in the election law field advocate approaches that evince an overriding concern for the casting of a meaningful vote, for robust political competition, and for policing the process of representation–all preeminent Elysian concerns. These advocates have faced critiques tracking those that Ely faced, particularly the indeterminacy critique. Ely’s work has latent, overlooked lessons in responding to these objections, and this Article seeks to return them to prominence. In this Article, Luke McLoughlin takes Ely out of the “Cf.” footnote to which he is often relegated and contends that the strengths and weaknesses of Democracy and Distrust have important insights for the body of current election law debates. The trajectory of Democracy and Distrust’s argument as well as the argument’s mixed legacy show that judicial review of the political process is more justifiable and effective where empirical evidence clearly demonstrates a representational burden, channel blockage, or democratic harm. Empirical evidence is important to the crafting of doctrine in any field of law and to all types of judicial decision making, but it is particularly crucial to doctrines governing the law of politics, which often rely (as Ely’s theory did) on accounts of and assumptions about legislative motivation and political behavior. McLoughlin makes visible the undercurrent of Elysian concepts in contemporary debates about election law doctrine, and contends that Democracy and Distrust has concrete meaning and insight for the election law field beyond its mutually opposing positions as obligatory footnote and “holy grail” of judicial review. Courts have relied on a variety of standards, tests, and presumptions in crafting election law doctrine, sometimes based on strong empirics and other times on conjecture or conceptions of more ephemeral harms. McLoughlin contends that, by applying the obscured lessons of Ely’s work, scholars and courts constructing election law doctrine can proffer and benefit from empirically convincing accounts of institutional and political dynamics in cases involving the law of the political process.

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